SHE TSU YI v. TSUI KI TING AND OTHERS

SHE TSU YI v. TSUI KI TING AND OTHERS

The court found the alleged pre-condition did not exist: RMB3,600,000 was an uncalled share of future capital (15% of RMB24,000,000) not an immediately payable expense; the resolutions and parties' conduct show a binding Agreement as of May 2002 making plaintiff a 30% shareholder; defendants (Tsui brothers) breached fiduciary duties, committed fraud, and, with Million Sense and Vast Land, dishonestly assisted, knowingly received the asset and conspired to injure Po Tek; specific performance, declarations, account and damages were therefore ordered in favor of plaintiff and Po Tek.

Citation
SHE TSU YI v. TSUI KI TING AND OTHERS
Parties
Plaintiff: Mr She; 1st Defendant: Mr Tsui; 2nd Defendant: Mr Ser; 3rd Defendant: Million Sense; 4th Defendant: Vast Land; 7th Defendant (company): Po Tek
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 November 2007
Case Number
HCMP3290/2004
Procedural Posture
High Court Civil Proceedings: Shareholder Contract, Equitable and Derivative Claims (hca1684/2004 & Hcmp3290/2004) / Judgment Delivered (trial)
Outcome
Judgment for plaintiff (Mr She) on personal contractual claims and for Po Tek on derivative claims; specific performance and multiple equitable and common law remedies granted.
Legal Topics
Specific Performance, Derivative Action, Breach of Fiduciary Duty, Knowing Receipt, Dishonest Assistance, Conspiracy to Injure, Estoppel, Rectification of Registers
Source Language
EN
Company Law Contract Law Equity and Trusts Fiduciary Duties Tort (conspiracy) Fraud Specific Performance Derivative Action +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 9 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Mr She

Plaintiff

Mr Tsui

1st Defendant

Mr Ser

2nd Defendant

Million Sense

3rd Defendant

Vast Land

4th Defendant

Po Tek

7th Defendant (company)

Procedural Posture

High Court Civil Proceedings: Shareholder Contract, Equitable and Derivative Claims (hca1684/2004 & Hcmp3290/2004) / Judgment Delivered (trial)

Legal Issues

  1. 1 Whether the Agreement was subject to a pre-condition requiring immediate payment of RMB3,600,000
  2. 2 Whether plaintiff failed to satisfy any pre-condition so no binding agreement arose
  3. 3 Whether plaintiff had locus standi to bring derivative claims on behalf of Po Tek

Ratio Decidendi

The court found the alleged pre-condition did not exist: RMB3,600,000 was an uncalled share of future capital (15% of RMB24,000,000) not an immediately payable expense; the resolutions and parties' conduct show a binding Agreement as of May 2002 making plaintiff a 30% shareholder; defendants (Tsui brothers) breached fiduciary duties, committed fraud, and, with Million Sense and Vast Land, dishonestly assisted, knowingly received the asset and conspired to injure Po Tek; specific performance, declarations, account and damages were therefore ordered in favor of plaintiff and Po Tek.

Court Disposition

Judgment for plaintiff (Mr She) on personal contractual claims and for Po Tek on derivative claims; specific performance and multiple equitable and common law remedies granted.

Orders

  • Specific performance of the Agreement against the 1st and 2nd defendants (Tsui brothers) to recognize and procure plaintiff's 30% shareholding in Po Tek
  • Declaration that Mr She was and is a 30% shareholder of Po Tek